Case No: 200506480/A9

Neutral Citation Number: [2009] EWCA Crim 904
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
(His Honour Judge LAWLER Q.C.)
T20087345
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/05/2009
Before :

LORD JUSTICE LEVESON
MR JUSTICE OPENSHAW
and
HIS HONOUR JUDGE GILBERT Q.C.
(Sitting as an Additional Judge of the Court of Appeal Criminal Division)
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Between :

	CHRISTOPHER GWYN THOMAS	Appellant
	
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	REGINA	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr. Charles Garside Q.C. for Christopher Gwynn Thomas
Mr. Matthew Bean for the Crown
Hearing date : 8th April 2008
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Judgment
Lord Justice Leveson : 
1.	On 28th October 2008, in the Crown Court at Sheffield before His Honour Judge Lawler Q.C., the appellant, Christopher Gwyn Thomas (then 42 years of age), was convicted by majority verdict of the murder of Karen Hill.  He was sentenced to life imprisonment and ordered to serve a minimum term of 17½ years less 152 days being the time served on remand.  He appeals against sentence by leave of the single judge.
2.	The background facts must be recounted in some detail.  Karen Hill (who was 50 years of age at the time of her death) commenced a relationship with the appellant in 2007, shortly after her marriage of some 14 years had broken down and she had left the matrimonial home.  She had moved into rented accommodation, 8 Day Street, Barnsley, with her 18 year old son, Kevin, where she drank heavily.  Having done so, the appellant (who was later to describe himself as an alcoholic) also moved into her new home.  The relationship, doubtless fuelled by alcohol, was clearly turbulent.  Neighbours heard arguments and Mrs Hill was seen with bruises and black eyes for which she made excuses that she had fallen over.
3.	At around midnight on 23rd May 2008, neighbours heard an argument coming from was heard to come from 8 Day Street; the two were heard to be screaming at each other with doors banging.  A male shouted “You fucking bastard” and a woman was screaming and sobbing.  At about 4.00 am, Kevin returned home with a friend to find his mother and the appellant lying flat out in the living room, with a blanket over them.  He assumed they were asleep.  By 10.00 am the following morning, Mrs Hill was lying on the floor with a blanket over her; she had soiled herself and he noticed that she had a black eye which he had not noticed the previous night; he tried unsuccessfully to get her up.  He then saw the appellant who said that she “was on one” and had been drinking “loads”.  Later, they again tried to get her up; she kept on saying “He’s hit me, he’s hit me”.  Water on her face had no effect and the appellant said that he did not know how she had got her black eye other than that she had fallen down.  He said that he had had enough, was fed up with being blamed for things and was leaving that day. When Kevin left the house at about noon, his friend thought that there was fresh blood underneath Mrs Hill’s chin.  During the course of that day, the appellant also appeared affected by alcohol both inside and outside the house.
4.	It was later to transpire that, at about midday on 24th May, the appellant took a series of photographs of Mrs Hill on his mobile telephone: these revealed injuries to her face and other parts of her body, along with the presence of faeces on her body.  When later interviewed about these photographs, he said that he had not noticed the injuries and was simply taking photographs without realising what he was capturing.  The aim, he said, was to shock Mrs Hill into seeing what she was like when drunk.  Whether, at that time, she was either dead or unconscious was not clear.
5.	Kevin returned home at about 7.30 pm that day to find the door locked.  When he got in, he found his mother still on the floor of the living room, naked but covered with a blanket.  Her face appeared to be covered in bruises in addition to the black eye that he had earlier seen.  He noticed a cut under her chin.  He called the appellant to say that she was not waking.  His response was to the effect: “I’ve only just checked her two minutes ago.  She tried to get up just a bit ago but she fell down”.  To Kevin, he did not appear to be drunk.  An ambulance was called and the police arrived.  She was cold to the touch and it was plain that she was dead.  The appellant was arrested, saying on route to the police station: “I haven’t done anything. The truth will come out in the end.”
6.	A detailed post mortem was conducted which revealed a substantial catalogue of injuries.  The most significant and fatal injuries were internal: these consisted of a rupture of the superior mesenteric artery, a tear to the nearby small bowel mesentery and trauma to the underlying pancreas severing the head of the pancreas.  In addition Mrs Hill was found to have sustained four fractured ribs on the left side (three of which were older than the other), nine fractured ribs on the right side (all recent), a subarachnoid haemorrhage (recent), a subdural haematoma (several days old) and multiple bruises to the head face and torso.  The pathologist concluded that the internal injuries had been caused by a very forceful kick or stamp on the abdomen at a time when Mrs Hill was lying on her back or standing against a hard surface.  These injuries were inflicted within hours of death and she would not have been conscious thereafter.  
7.	The appellant was interviewed.  He accepted that both he and Mrs Hill were alcoholics and that during the night of 23rd May they had drunk a great deal so that she was very drunk.  He said that she had lain on the settee and fallen off it; she had also fallen over in the lavatory.  He denied that there had been an argument and repeatedly denied that he was the cause of any of her injuries.  By their verdict, the jury rejected this account and the combination of accident and lack of intent advanced at the trial. 
8.	It is important to identify one other area of evidence because of its relevance to the appeal against sentence. Doubtless because of the way in which the appellant had put his case, the Crown was given leave to adduce evidence of propensity in the form of earlier incidents of domestic violence.  This included evidence of a number of occasions in which the police became involved following complaint by Mrs Hill and, in others, her son had seen her with unexplained bruises.  As a result of one such incident, the appellant was cautioned for assault occasioning actual bodily harm; no other was action taken because the complaint was withdrawn or some excuse was made by Mrs Hill for not proceeding.  Additionally, evidence was called from the appellant’s ex-wife, Sandra Thomas, who alleged that she had been subjected to violence in the late 1980s to early 1990s although, on any view, the parties had lived together reasonably amicably thereafter for some years.  Another former partner, Anne Binney, alleged violence more recently although she had twice left and then returned to the appellant and her medical records revealed no serious injury.
9.	As to sentence, the law required the learned judge to impose imprisonment for life and then to focus on the determination of the minimum term which the appellant would be required to serve.  He accepted that the starting point as described within paragraphs 4 to 6 of Schedule 21 of the Criminal Justice Act 2003 (“the Act”) was 15 years.  He then considered the aggravating and mitigating factors set out in paragraphs 10 and 11 in these terms: 
“10.    Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include— 
(a) a significant degree of planning or premeditation, 
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death, 
(d) the abuse of a position of trust, 
(e) the use of duress or threats against another person to facilitate the commission of the offence, 
(f) the fact that the victim was providing a public service or performing a public duty, and 
(g) concealment, destruction or dismemberment of the body. 
11.   Mitigating factors that may be relevant to the offence of murder include— 
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation, 
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability, 
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation, 
(e) the fact that the offender acted to any extent in self-defence, 
(f) a belief by the offender that the murder was an act of mercy, and 
(g) the age of the offender.” 
10.	The first point to make is that the lists of aggravating and mitigating factors provided are not exhaustive but are said only “to include” the features listed.  Secondly, these features (and the Schedule generally) is not intended to restrict the operation of s. 143(2) of the Act in relation to previous convictions: see para. 12(a) of the Schedule.  Third, although some of the aggravating features might reveal criminal offences, not all do, and there is no question of having to include counts on the indictment in relation to those that do.  That is so even in connection with the choice of a higher starting point:  see, for example, R. v. Healey [2008] EWCA Crim 2583 in which this court decided that the judge was entitled to proceed on the basis that a murder was for gain, notwithstanding that no count of robbery was included on the indictment.    
11.	The learned judge proceeded with this exercise with meticulous care.  When passing sentence, he referred to the moving statement from Karen Hill’s mother on behalf of her family which we also have seen.  He decided to ignore the appellant’s previous convictions (none of which had led to a custodial sentence) but noted the caution in relation to Mrs Hill and said of the evidence from Sandra Thomas and Anne Binney that, despite criticisms of them, he was “entirely satisfied ... they were essentially truthful” so that he had “demonstrated over many years that [he] was a man who treats [his] partners cruelly”.  He went on:
“I am satisfied against the background of violence to your two previous partners, that a real – and I mean a real – aggravating feature here is your cruel and violent behaviour towards Karen over a prolonged period”    
12.	Having concluded that he had made Mrs Hill’s life a misery as well as causing her pain in the months before she died, he described the day of her death as “the culmination of that sustained domestic violence” albeit without significant premeditation (which, in the circumstances, he did not consider provided relevant mitigation).  He also noted, as a feature of some aggravation, Mrs Hill’s vulnerability, the acute pain that she must have suffered, the appellant’s failure to help in the slightest and the taking of the photographs which he described as “a further distasteful feature”.  On the other hand, he decided that the appellant:
“... probably did not intend to kill her but had the lesser of the two intents ... because of the drink, although the evidence is you were by no means drunk”.
13.	The learned judge approached the determination of the tariff, by accepting that the starting point for the minimum term as described within paragraphs 4 to 6 of Schedule 21 of the Criminal Justice Act 2003 (“the Act”) was 15 years.  He then considered the aggravating and mitigating factors set out  which he reduced by 2 years to reflect his finding on intent (a mitigating feature within paragraph 11(a) of the Schedule) but increased to reflect the identified aggravating features to 17½ years less the period spent in custody.  It is against his approach to that exercise that this appeal is mounted.
14.	The primary point now taken on this appeal concerns an issue of principle which was not taken before the trial judge or in the original grounds of appeal.  In short, it is submitted by Mr Garside that the learned judge was not entitled to take account of prior criminal activity by the appellant, not resulting in a conviction, when fixing the minimum term and he points to the sentencing remarks not only expressing himself entirely satisfied of the earlier domestic violence, but also the treatment of Karen Hill “over many months” such that “against the background of violence to your two previous partners, ... a real – and I mean a real – aggravating feature here is your cruel and violent behaviour towards Karen over a prolonged period”. 
15.	Mr Garside analysed the statutory framework in this way.  The duty to fix a minimum term arises under s. 269 of the Act which, by s. 269(3) requires the Court to have regard to “the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it” as well as the general principles set out in Schedule 21. The phrase “offences associated with it” is used in ss. 152-3 of the Act and, by s. 305 of the Act is defined by reference to s. 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000 as requiring the offender to be convicted of the offence in the proceedings in which he is convicted of the other offence or is sentenced for it at the same time or has it taken into consideration.  Furthermore, the duty to take account of previous convictions when determining the seriousness of an offence for sentencing purposes is set out in s. 143(2) of the Act and applies only to convictions and not to bad character material which has not led to a conviction.  As for the principles set out in Schedule 21, these concern the starting points, aggravating and mitigating features of the offence itself.  
16.	As a result, Mr Garside submitted that the only factors which the court was entitled to consider when assessing the seriousness of the offence for the purpose of fixing the minimum term were the circumstances of the murder itself or those of any relevant previous convictions and not any other material establishing bad character (although he recognised that such material could defeat a submission that a defendant was entitled to a discount for good character).  He argued that this submission was supported by the general rule that the court could not, when assessing the seriousness of a crime for the purposes of sentence, have regard to material which establishes the commission of offences by the defendant of which he had not been convicted unless he admitted the offences and asked for them to be taken into consideration.  Thus, it was inappropriate for the judge to have regard either to the material (which he expressly believed) in relation to the previous partners of the appellant or, indeed, to any earlier incident of violence towards Mrs Hill (none of which led to a conviction although he was once cautioned).
17.	As a matter of common law, it has always been open to a judge, when assessing the the culpability of the offender, to have regard not only to the gravity of the offence but also to a defendant’s antecedent behaviour not all of which is necessarily evidenced by previous convictions.  Quite apart from the evidence in a case, pre-sentence reports frequently refer to the attitude, approach and behaviour of an offender in terms which allow the court to determine, for example, whether the use of violence reveals an entrenched disregard for others or is one off. 
18.	Furthermore, in the context of this type of case, this practice is reflected in guidance issued by the Sentencing Guidelines Council in December 2006: Definitive Guideline – Overarching Principles: Domestic Violence.  The relevance and impact of such a guideline in fixing the minimum period in a murder sentence is identified in section 269(5) of the Act which requires the court not only to have regard to (a) the general principles set out in Schedule 21 but also “(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21”.  The value of the guidelines is identified in s. 172 of the Act in these terms:
“(1) 	Every court must – (a) in sentencing an offender, have regard to any guidelines which are relevant to an offenders case, and (b) in exercising any function relating to the sentencing of offenders, have regard to any guidelines which are relevant to the exercise of the function.
(2) 	In subsection (1) “guidelines” means sentencing guidelines issued by the [Sentencing Guidelines] Council under s. 170(9) as definitive guidelines, as revised by subsequent guidelines so issued.”
19.	Turning to the Definitive Guideline itself, in addition to requiring, as a starting point, that offences committed in a domestic context should be regarded as no less serious than offences committed in a non-domestic context (see para 2.1), the Guideline goes on to list aggravating factors which include particular vulnerability of a victim and “(v) a proven history of violence or threats by the offender in a domestic setting” in these terms:
“3.14  It is important that an assessment of the seriousness of an offence recognises the cumulative effect of a series of violent incidents or threats over a prolonged period, where such conduct has been proved or accepted.
3.15  Where an offender has previously been convicted of an offence involving domestic violence either against the same or a different partner, this is likely to be a statutory aggravating factor (s 143(2) of [the Act]).” 
20.	Paragraph 3.14 refers to assessing the seriousness of the offence itself having regard to any proved prior violent incident or threat over a prolonged period; 3.15 refers to the statutory aggravating factor of an offender having been convicted of an offence involving domestic violence which this appellant, of course, was not.  The use of these different verbs cannot be accidental.
21.	How do these features apply to this case?  First, we accept that the learned judge was not entitled to increase the minimum term which he fixed by way of sentence for the violence which he was sure had been visited on Sandra Thomas and Anne Binney.  He was not sentencing for those offences.  Neither was he entitled to use section 143(2) of the Act in relation to the caution administered in respect of Karen Hills.  What he was, however, entitled to do was to assess the seriousness of the act of violence which led to Karen Hill’s death in the context of the cumulative effect of a series of violent incidents or threats over a prolonged period: quite apart from the common law, that approach is also specifically mandated by s.172(1) of the Act and consistent with a proper reading of paragraphs 10(b) and 10(c) of the Schedule reflecting the vulnerability and physical suffering of the deceased.      
22.	We also reject Mr Garside’s argument that the language which the judge used made clear that he was sentencing for the earlier acts of violence on Sandra Thomas and Anne Binney.  The context was the appellant’s account (in interview if not in court) that he was not criminally responsible for any injury, that he was “fed up with being blamed for things”.  The judge was entitled emphatically to reject the appellant’s account as utterly without foundation: he was able to do so “against the background of violence” to the other women (our emphasis).  The aggravating feature was the “cruel and violent behaviour towards Karen over a prolonged period”, neither more nor less. We reject the attack on the learned judge’s approach.
23.	Mr Garside also argued that once the learned judge had reduced the minimum term by two years to reflect the lack of intention to kill, he gave the aggravating features undue prominence and that taken individually or in the aggregate; they were far less serious than the fact of the murder.  He submitted that the additional 4½ years, equivalent to a 9 year determinate term increased the minimum by more than a third and was far greater than any sentence that might have been imposed for any assault prior to the murder. 
24.	In our judgment, that submission misreads the approach adopted.  The learned judge was not increasing the minimum term from 13 to 17½ years to reflect the prior conduct of the appellant either towards Karen Hill or anyone else.  He was assessing the gravity of the prolonged violence to her causing multiple fractures to her ribs, brain injuries and internal injury against the background of her vulnerability and in circumstances where he chose to photograph her in a collapsed state and failed to summon medical assistance (whether or not that assistance would have made a difference).  
25.	Fixing the minimum period to be served for murder cannot be approached entirely as a mathematical exercise.  It is not appropriate to accept the discount for the lack of intent (which itself might have been generous given the extent of the violence and the prospect that at some stage what happened may have verged on the inevitable) and then challenge the effect of the uplift as a free-standing sentence covering conduct represented by the aggravating features.  Further, where, as here, the judge has conducted a trial and has had a first class opportunity to assess all the participants in the drama that culminated in this murder, this court will not interfere lightly with the exercise of his discretion.  Suffice it to say, this sentence was neither wrong in principle nor manifestly excessive.
26.	Prolonged, abusive domestic violence which leads to death must always result in condign punishment.  This appeal is dismissed.